The pertinent facts are not in
dispute.� For a time, defendant and another man, Derrick, were in jail
together.� Defendant eventually was released.� Derrick remained in jail and was
legally disqualified from continuing to receive unemployment benefits.� After
being released from jail, defendant, using Derrick's name and Social Security
number, reactivated Derrick's unemployment claim and received and cashed three
checks made out to Derrick.� With respect to each of those checks, defendant
was charged with theft, identity theft, and forgery.�

Defendant admitted at trial that he
had obtained and cashed the unemployment checks and, thus, was guilty of theft;
however, defendant asserted that Derrick had given him permission to receive
and cash the checks and, therefore, he was not guilty of identity theft and
forgery.� Derrick refused to testify at defendant's trial.� In support of his
theory, defendant offered into evidence an unsigned letter, purportedly written
by Derrick, that, defendant argued, showed that Derrick had given him
permission to receive and cash the checks.� The state objected to the admission
of the letter on authentication grounds, but the trial court admitted it into evidence.���

"In other words, it's not necessarily substantive
evidence, but you're saying [the letter] is a statement made by Mr. Derrick and
we want it in because it's got some indicia of reliability which is on the
border, but assuming that that's true -- but once that's in, doesn't the State
have an opportunity to present any inconsistent statements with that?

"* * * * *

"* * * I think once you offer the letter,
then I think the state has the right to offer an inconsistent statement only to
the extent that he didn't authorize anybody.� Not an accusatory statement
towards the defendant.� I think you get into Crawford problems there
even though it's inconsistent."

At trial, the state called Kelley as
a rebuttal witness.� The prosecutor asked Kelley if "Mr. Derrick t[old]
you that he did not give anyone permission to start his unemployment checks
again."� Kelley answered, "That's correct."� The jury found
defendant guilty, and he appeals from the ensuing judgment of conviction.�

During its colloquy with counsel, the
court emphasized that it was admitting the statement for the limited purpose of
impeaching the letter offered by defendant.� The court was aware of the Crawford
issue raised by defendant and stated that "[i]t's clearly a hearsay
statement, I agree with that, but it's an inconsistent statement if you see
what I'm saying."� The court's rationale for admitting the statement was
to give the state the opportunity to impeach the declarant, Derrick: �"I
think once you [defendant] offer the letter, then I think the state has the
right to offer an inconsistent statement only to the extent that he didn't
authorize anybody."�

The question whether nonhearsay
evidence implicates the Sixth Amendment was dealt with in passing by the
Supreme Court in Crawford.� As Mueller and Kirkpatrick explain:

"Crawford * * * comment[ed] that nonhearsay uses
of out-of-court statements do not implicate the confrontation clause and that
these uses are in effect nontestimonial uses.� Thus, statements may be admitted
to provide context for other statements without offending the Crawford doctrine.�
The same applies to statements offered as background to explain acts of law
enforcement officers during investigations, which are often admitted as nonhearsay--analytically,
as showing what information the officers had."

"The nonhearsay aspect of [a
co-defendant's] confession--not to prove what happened at the murder scene but
to prove what happened when respondent confessed--raises no Confrontation
Clause concerns.� The Clause's fundamental role in protecting the right of
cross-examination * * * was satisfied by [the sheriff's] presence on the
stand.� If respondent's counsel doubted that [the co-defendant's] confession
was accurately recounted, he was free to cross-examine the Sheriff. * * * In
short, the State's rebuttal witness against respondent was not Peele, but [the
sheriff]."

(Citations omitted; emphasis in original.)� See Crawford,
541 US at 59 n 9 ("The Clause also does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted."
(citing Street, 471 US at 414)).� In the wake of Crawford�
several courts have interpreted the reference to Street in Crawford
as preserving the use of nonhearsay statements by nontestifying declarants.� SeeUnited States v. Jimenez, 513 F3d 62, 81 (3rd Cir 2008), cert den sub
nom, Abreu v. United States, __ US __, 128 S Ct 2460 (2008) ("Nonhearsay
use of evidence as a means of demonstrating a discrepancy does not implicate
the Confrontation Clause."); see also United States v. Logan, 419
F3d 172, 177-78 (2nd Cir 2005), cert den, 546 US 1110 (2006) (holding
that, under Street, that admission of co-conspirators' alibi statements
through testimony of police officer did not violate Sixth Amendment because
statements were not used for their truth).

We reach the same conclusion.� In
this case, the challenged statement was offered solely for the purpose of
impeaching the letter offered by defendant.� After defendant had testified to
the contents of the letter, the state called Kelley as a rebuttal witness to
recount Derrick's statement that he had not given anyone permission to use his
unemployment account.� Admission of that statement was proper under OEC 806 as
impeachment of a hearsay declarant and, because the statement was not offered
for its truth, defendant's Sixth Amendment right to confrontation was not
violated.

We turn to defendant's supplemental
assignment of error.� Defendant was sentenced to two consecutive 13-month
prison terms for identity theft based on Counts 7 and 10 of the indictment.�
The sentences were imposed consecutively to one another and to a 26-month
prison sentence imposed on Count 4.� Count 4 had alleged that defendant
committed identity theft on April, 1, 2005; Count 7 alleged that defendant
committed identity theft on April 14, 2005.� Count 10 alleged that defendant
had committed identity theft on April 14, 2005, differentiated from the
identity theft alleged in Count 7 by the identifying number of the check that
defendant cashed.

The trial court sentenced defendant
to 26 months' imprisonment on Count 4 based on defendant's "persistent
involvement" in property crimes.� ORS 137.717.(4)�
The court then imposed a 13-month prison sentence on Count 7, to be served
consecutively to the sentence imposed on Count 4, because "they were
separate and distinct incidences, separate checks, separated by time and place,
and clearly consecutive sentences are appropriate."� With regard to Count 10,
the trial court imposed a 13-month prison sentence, to be served consecutively
to the sentence on Count 7, reasoning that "although the conduct was
similar in nature to counts four and seven, that it was and is a different
check separated by time and place and it does not merge or is not appropriate
for concurrent sentences."� See ORS 137.123.(5)

As discussed, defendant acknowledges
that his challenge to his consecutive sentences is unpreserved, but he urges us
to review it as plain error.� For the following reasons, we conclude that the
error is plain and exercise our discretion to correct it.

In Ice, the Supreme Court held
that the Sixth Amendment right to jury trial as interpreted by the United
States Supreme Court in Blakely v. Washington, 542 US 296, 124 S Ct
2531, 159 L Ed 2d 403 (2004), applies to facts supporting the imposition of
consecutive sentences under ORS 137.123.� In State v. Hagberg, 345 Or
161, 169-70, 190 P3d 1209 (2008), the court further determined that, in a
particular case, it may be possible to determine from the jury's guilty verdict
that the jury necessarily--even if only implicitly--found such facts.� Here,
because the trial court did not expressly submit any facts supporting consecutive
sentences to the jury, we consider whether, in finding defendant guilty, the
jury necessarily, albeit implicitly, found such facts.

The record shows that trial court
instructed the jury as to the dates on which defendant was alleged to have
committed his crimes.� Specifically, and consistently with the indictment, the
trial court instructed the jury that defendant allegedly committed Count 4 on
April 1, 2005, and that he committed Counts 7 and 10 on April 14, 2005.� On
that record, even assuming that the trial court's instructions demonstrate
that, in finding defendant guilty of Counts 4 and 7, the jury necessarily found
that those two crimes did not arise out of the same continuous and uninterrupted
course of conduct--thus qualifying those convictions for consecutive sentences
under ORS 137.123(2)--the same cannot be said for Counts 7 and 10, which
occurred on the same date.

Nor do the jury verdict forms remedy
that deficiency.� The jury returned three verdict forms.� Each form included
the number of a specific check and a list of the charges arising out of
defendant's appropriation and utterance of that check.� The forms did not
include, however, the dates or places of any of defendant's alleged acts;
accordingly, nothing in the verdict forms demonstrates that the jury
necessarily found that defendant's convictions on Counts 7 and 10 did not arise
out of the same continuous and uninterrupted course of conduct, as pertinent to
ORS 137.123(2), or any other facts supporting consecutive sentences.� Because neither
the trial court's jury instructions nor the jury forms demonstrate that the
jury necessarily found facts supporting imposition of a 13-month consecutive
sentence on Count 10, the trial court plainly erred in imposing that sentence.

The question remains whether we
should exercise our discretion to correct the error.� See Ailes v. Portland
Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991).� In considering
whether to exercise discretion to correct unpreserved sentencing errors, we
consider whether a defendant encouraged the trial court's imposition of the
erroneous sentences, the possibility that the defendant made a strategic choice
not to object to the sentences, the role of other sentences in the case, and
the interests of the judicial system in avoiding unnecessary, repetitive
sentencing proceedings.� State v. Fults, 343 Or 515, 523, 173 P3d 822
(2007); State v. Ramirez, 343 Or 505, 513, 173 P3d 817 (2007), adh'd
to as modified on recons, 344 Or 195, 179 P3d 673 (2008).

We next consider whether a remand for
resentencing in this case would implicate "the interest of the judicial
system in avoiding unnecessary repetitive sentencing proceedings."� Fults,
343 Or at 523.� The state does not contend that, on remand, the court could
fashion the same composite result in a different way.� Cf. State v.
Jenniches, 187 Or App 658, 664, 69 P3d 771, rev den, 335 Or 578
(2003) (declining to exercise discretion to correct a sentencing error because
it was "certain" that, on remand, the trial court would restructure
the defendant's sentences so as to achieve the same sentence that it originally
imposed).� Indeed, the state makes no argument at all with respect to the consecutive
sentence imposed on Count 10.� The state's sole response to defendant's
assignment of sentencing error is that Counts 4 and 7 occurred two weeks apart
and thus "plainly d[id] not arise out of a continuous and uninterrupted
course of conduct."� Notwithstanding the correctness of the trial court's
sentence on Counts 4 and 7, we cannot say that the court would be able to restructure
defendant's sentence on Count 10 to achieve the same result on remand.

Further, as discussed above, there is
a "legitimate debate" about the existence of the sentence enhancement
fact that the court found here.� Counts 7 and 10 were alleged to have occurred
on the same day.� Although the jury found defendant guilty of both charges, the
jury's guilty verdicts do not demonstrate that it found that the two acts were
not part of the same continuous and uninterrupted course of conduct or any
other facts supporting consecutive sentences.� Those questions of fact cannot
be resolved on this record and, thus, we cannot say that it is certain
defendant will receive the same sentence on remand.

Finally, the "gravity of the
error," is significant in this case.� Ailes, 312 Or at 382 n 6.� By
imposing a consecutive sentence on Count 10, the trial court increased
defendant's term of incarceration by 13 months.

"When a hearsay statement * * * has been admitted
in evidence, the credibility of the declarant may be attacked, and if attacked
may be supported, by any evidence which would be admissible for those purposes
if the declarant had testified as a witness.� Evidence of a statement or
conduct by the declarant at any time, inconsistent with the hearsay statement
of the declarant, is not subject to any requirement under [OEC 613] relating to
impeachment by evidence of inconsistent statements."

3.Defendant
does not assert that, because the jury was not instructed that the evidence
must be considered only for the purpose of impeachment, it was necessarily
admitted for its truth.� Defendant did not request a limiting instruction and failure
to do so generally constitutes a waiver.� OEC 105; see also Laird C.
Kirkpatrick, Oregon Evidence� � 105.03 (5th ed 2002) ("Rule 105
requires that counsel specifically request a limiting instruction; failure to
do so will generally waive the right to claim error on appeal.").� The
Supreme Court has recognized the possibility that evidence of prior
inconsistent statements used to impeach a hearsay declarant can also be
inadmissible hearsay and has emphasized the function of a limiting instruction
in that situation.� See State v. Guzek, 336 Or 424, 449 n 18, 86 P3d
1106 (2004) ("Of course, defendant's evidence of inconsistent statements *
* * also had a possible hearsay purpose[.] * * * A limiting instruction
to the jury * * * often assists in guarding against a jury using such
statements for the wrong purpose.").� Nonetheless, in this case both the
trial court and the parties understood that Derrick's prior statement to Kelley
was being admitted for the limited purpose of impeaching Derrick's credibility,
thus making his purported statement in the letter proffered by defendant less
believable.� Defendant does not argue that the trial court erred by failing sua
sponte to instruct the jury that Derrick's statement was admissible only
for the purpose of impeachment.� Consequently, we do not reach that question.

4.Defendant does
not assign error to the departure sentence on Count 4.� Defendant executed a
written waiver of his right to a trial by jury "only as to aggravating
factor of persistent involvement in similar crimes."

"(2) If a defendant is simultaneously
sentenced for criminal offenses that do not arise from the same continuous and
uninterrupted course of conduct, or if the defendant previously was sentenced
by any other court within the United States to a sentence which the defendant
has not yet completed, the court may impose a sentence concurrent with or
consecutive to the other sentence or sentences.

"* * * * *

"(5) The court has discretion to impose
consecutive terms of imprisonment for separate convictions arising out of a
continuous and uninterrupted course of conduct only if the court finds:

"(a) That the criminal offense for which a
consecutive sentence is contemplated was not merely an incidental violation of
a separate statutory provision in the course of the commission of a more
serious crime but rather was an indication of defendant's willingness to commit
more than one criminal offense; or

"(b) The criminal offense for which a
consecutive sentence is contemplated caused or created a risk of causing
greater or qualitatively different loss, injury or harm to the victim or caused
or created a risk of causing loss, injury or harm to a different victim than
was caused or threatened by the other offense or offenses committed during a
continuous and uninterrupted course of conduct."

6.In his
supplemental brief, defendant argues that any objection at sentencing would
have been futile because the sentencing court "was bound by this court's
opinion in State v. Tanner, 210 Or App 70, 150 P3d 31 (2006), rev'd
and rem'd, 343 Or 554, 173 P3d 831 (2007)."� Defendant is incorrect;
he was sentenced on December 13, 2006, seven days before Tanner issued.